CUSTOMS AND EXCISE
Excise Tax Act
Practice—Appeal from tax assessment under Excise Tax Act (Act)—Issue whether appellant precluded from obtaining, from Tax Court of Canada (T.C.C.) order striking part of respondent’s amended amended notice of appeal considering that, in reply, appellant has “pleaded over” issue raised by respondent before T.C.C. but not raised in its notice of objection before M.N.R.—Respondent “specified person” within meaning of Act, s. 301(1) (for history of specified person provisions, see Potash Corp. of Saskatchewan Inc. v. R., 2003 FCA 471)—After assessment for additional net tax, interest and penalty, notice of objection, reassessment reducing tax and related penalty, notice of objection to reassessment, confirmation of reassessment, notice of appeal, respondent subsequently filed amended notice of appeal, for first time attempting to assert due diligence defence first recognized by Federal Court of Appeal in Canada (Attorney General) v. Consolidated Canadian Contractors Inc., [1999] 1 F.C. 209 (C.A.)—Tax Court Judge (Telus Communications (Edmonton) Inc. v. Canada, 2004 TCC 476) rejected motion for order to strike paragraphs raising defence of due diligence on ground appellant had joined issue on question of penalty, therefore could not argue impugned paragraphs constituted abuse of process—“Pleading over” explained in Nabisco Brands Ltd. v. Procter & Gamble Co. et al. (1985), 5 C.P.R. (3d) 417 (F.C.A.); Montreuil v. The Queen, [1976] 1 F.C. 528 (T.D.)— Appeal allowed—T.C.C., in appeal involving “specified person,” without jurisdiction to deal with issue not properly raised in notice of objection—“Specified person” may object to any or all assessment issues, but must file notice of objection meeting requirements of Act, s. 301(1.2): issue must be reasonably described, must be quantified, must be supported by statement of facts and reasons—“Specified person” may also object to reassessment, but only with respect to issues raised in prior notice of objection or new issues raised in reassessment (Act, s. 301 (1.4), (1.5))—Identical restrictions applicable in case of appeal to T.C.C.—“Specified person” may appeal to T.C.C. only with regard to issue properly raised in notice of objection with respect to relief sought in respect of that issue as specified in notice of objection—Issue properly raised in notice of objection only by complying with Act, s. 301(1.2)—Herein, issue of due diligence never raised in any notice of objection—Respondent’s request to vacate “associated interest and penalties,” only mentioned in notice of objection to reassessment, not reference to issue of due diligence but consequential to reduction of interest and penalty flowing from requested reduction of net tax adjustments— Respondent cannot therefore raise due diligence in amended amended notice of appeal before T.C.C.—Kibale v. Canada (1990), 123 N.R. 153 (F.C.A.) distinguished: meaningless to draw analogy with rules applicable in case of statute of limitations—Conduct of parties cannot govern when jurisdiction of T.C.C. denied by statute: Canada v. Krahenbil, [2000] 3 C.T.C. 178 (F.C.A.)—Pleading cause of action beyond Court’s jurisdiction to adjudicate clear abuse of process: Weider v. Beco Industries, [1976] 2 F.C. 739 (T.D.); therefore, appellant’s motion under Tax Court of Canada Rules (General Procedure), s. 53 in order—Excise Tax Act, R.S.C., 1985, c. E-15, ss. 301(1) (as enacted by S.C. 1990, c. 45, s. 12; 1997, c. 10, s. 82), (1.2) (as enacted idem), (1.4) (as enacted idem), (1.5) (as enacted idem)—Tax Court of Canada Rules (General Procedure), SOR/90‑688, s. 53.
Canada v. Telus Communications (Edmonton) Inc. (A-369-04, 2005 FCA 159, Desjardins J.A., judgment dated 6/5/05, 12 pp.)